ENEDENA AGAWA VDA. DE ORIBIANA, COMPLAINANT, VS. ATTY. FIDENCIO H. GERIO, RESPONDENT.

On February 6, 1976, Enedena Agawa Vda. de Ori­biana filed the instant
complaint for the disbarment of respondent Fidencio H. Gerio, a member of the
Philippine Bar, alleging that respondent, who was her counsel in CA-G. R. No.
54297-R, entitled Ene­dena Agawa Vda. de Oribiana, Plaintiff-Appellee, versus
Ricardo Villaflores, Sr., et al., Defendants-Appellants”, then pending in the
Court of Appeals, failed to file her brief as appellee in said case without any
justifiable reason, despite repeated demands made by complainant, thereby
committing mal­practice and gross misconduct in office, and that sometime in
June, 1975, complainant sought the as­sistance of another counsel so that the
required brief might be prepared, but despite a letter of demand, respondent
refused to turn over to complain­ant the records of the case. Concluding, complain­ant prayed that
respondent he disbarred and his name be stricken off the Roll of
Attorneys. She likewise prayed for such
other reliefs as might he just and equitable under the premises.

In compliance with a resolution of this Court, respondent
answered the complaint, contending that he had attended to the case of
complainant with ut­most care and prudence, citing specific instances; that for
all the legal services of respondent, com­plainant promised to pay him the sum
of P1,500.00 upon the termination of the case in the Court of First Instance,
but up to the time of the filing of the answer, the former had paid him only
the amount of P340.00; that the transcript or stenographic notes could not be
secured because complainant could not afford to pay for the same; that upon
receipt of the defendant’s notice of appeal, respondent ins­tructed complainant
to prepare the amount of P400.00 to cover the costs of printing her brief as
appellee and other incidental expenses; that complainant as­sured him that the
amount would be ready when need­ed, fully understanding the necessity of said
expenses in cases of appeal; that when respondent received the notice from the
Clerk of Court of the Court of Appeals requiring the submission of the brief,
he sent a messenger to complainant at her residence for the purpose of getting
the required amount, but com­plainant merely told the messenger that she would
just see the respondent; that three days thereafter, complainant did confer
with respondent but did not bring the money as instructed; that neither was she
able to furnish respondent with the transcript of stenographic notes which were
needed for the prepa­ration of the brief; that these notwithstanding,
respondent studied the arguments presented by the opposing counsel; that the
period for filing the brief expired without complainant giving a single centavo
for the expenses therefor; that respondent, not being a rich man and having
nine children to support, could not spend for the needs of complain­ant; and
that, at any rate, it is not the obligation of counsel to spend for his client,
absent a contrary argument.

Anent the alleged letter from complainant’s new counsel
requesting for the turnover of the rec­ords of the case, respondent averred
that he told complainant to inform her new counsel that the rec­ords were in
the possession of the Clerk of Court of the Court of Appeals and could be
examined there at any time; that he further informed complainant that the
turnover of the records would be useless because he had already received a
notice from said Clerk of Court, informing him that the appeal had been
considered submitted for decision that res­pondent could not release the
records in his pos­session because complainant’s new counsel had not entered his
appearance before the Court of Appeals, and communications respecting the case
were still being addressed to respondent by said Court; that inasmuch as he had
not been fully paid for his ser­vices, respondent had a lien on all the papers
that lawfully came into his possession in the course of the prosecution of the
case of complainant; and that up to the time of the answer, no decision had
been rendered by the Court of Appeals.

On April 8, 1976, complainant filed a reply to the answer of
respondent, denying the averments made in said answer and contending, in brief,
that she had paid respondent an amount more than sufficient to cover the
printing of her brief. Considering the
reply, this Court, on May 7, 1976, resolved to refer the case to the Solicitor
General for investigation, report and recommendation.

In his Report and Recommendation, the Solicitor General made no
factual finding on the issue of whe­ther or not complainant actually gave
respondent the money for the preparation of her brief. Neverthe­less, it was found that complainant
could not pro­duce a receipt to support her claim of payment, allegedly because
she did not ask for one. On the
premise, however, that failure to file the brief within the reglementary period
is an offense which entails disciplinary action,^[1]
and that the reasons given by respondent do not justify his exculpation, the
Solicitor General filed the corresponding com­plaint with prayer for the
suspension of respondent from the practice of law. According to the com­plaint, the respondent, in failing to file
an appel­lee’s brief, had not exercised such care and dili­gence expected of
him as a lawyer consistent with his Oath of Office, and this failure to
discharge his duties as a lawyer finds sanction in Rule 138, Section 27 of the
Revised Rules of Court.

Respondent filed his answer to the complaint, substantially
reiterating the allegations contained in his previous answer, and praying for
the dismissal of the complaint.

The issue having been joined with the filing of respondent’s
answer, the case was set for hear­ing and on February 23, 1978 the case was
heard be­fore the Legal Officer-Investigator of this Court for reception of
additional evidence. The com­plainant
through the Office of the Solicitor Gene­ral, herein represented by Solicitor
Luisito P. Escutin, reintroduced the evidence submitted to said office during
the investigation of the case thereat. On the other hand, the respondent filed a Manifestation stating, among
other things, that the Court of Appeals had already rendered judgment in favor
of the complainant; that when the records of the case were remanded to the
lower court, he still appeared as counsel for the complainant in the exe­cution
of the judgment despite the pendency of this administrative case; that no
damage or prejudice has ever been caused the complainant; and that respond­ent
has not yet been paid the fees for his legal services. Subsequently, respondent filed a Memoran­dum
amplifying the discussion of his defenses. At­tached to said memorandum are copies of the deci­sions of the Court
of Appeals and the Court of First Instance, among others.

Considering the gravamen of the complaint filed by the Solicitor
General, the issue to be resolved here is whether or not the respondent is
guilty of negligence and misconduct in failing to file the appellee’s brief.

In People v. Cawili, supra, where counsel de
oficio failed to submit the brief for the accused-appellant within the
reglementary period, We said:

“It cannot he denied that the failure of counsel to submit the
brief within the reglemen­tary period is an offense that entails discipli­nary
action. The recital of the
circumstances in which counsel would seek to reduce its gravity do not call for
exculpation. He could have sought the
permission to file a mimeographed brief, or, at the very least, he could have
informed us of the difficulties attendant on defending his client. For him to blithely assume that a mere
reading of the record would suffice to discharge an obliga­tion not only to his
client but to this Court is to betray a degree of irresponsibility. It is not in keeping, even, with the minimal
standards ex­pected of membership in the bar to be so lacking in elementary
courtesy that this Court was not even informed of his inability to comply with
what was incumbent of him. His conduct
was therefore inexcusable, although the explanation he tendered and the
difficulties under which he worked would, to a certain degree, invite less than
full punish­ment.”

Again, in People v. Rosqueta, Jr.,^[2]
We said:

“* * *. Respondent
should be aware that even in those cases where counsel de parte
is un­able to secure from appellants or from their near relatives the amount
necessary to pursue the ap­peal, that does not necessarily conclude his
connection with the case. * * *. He should be aware that in the pursuance of
the duty owed this Court as well as to a client, he cannot be too casual and
unconcerned about the filing of pleadings. * * *.”

Considering the norm of conduct expected of a lawyer, as
explained in the cases of Cawili and Rosqueta, We cannot accede
to respondent’s prayer for exculpation from the charge. His principal de­fense — inability of his
client to defray the expenses for printing of brief — is not sufficient to
justify his failure to file the appellee’s brief. The circumstance that the appellee could not pro­duce the amount
to cover the cost of printing the brief was no justification for respondent to
renege on his duties. As stated in Cawili,
supra, he could have sought the permission of the court (in this case, the
Court of Appeals) to file a mimeographed or typewritten brief, or, at the very
least, he could have informed the court of his difficulties in the preparation
of the printed brief. For failing to do
so, he should be subject to administrative sanctions.

The case of Requio v. Dy-Liaco,^[3]
cited by respondent in support of his plea for exculpation, provides him no
room for comfort. In that case, We said
that We were convinced that no malice or inexcusable neglect could be imputed
to the respondent in not filing the appellant’s brief because aside front
failing to pay respondent’s fees and the ex­penses for printing the brief,
complainant therein had abandoned his appeal. In the case at bar, there is no pretense, and the record shows
none, that complainant had evinced any intention to abandon her appeal as to
justify respondent’s omission or neglect in filing the appellee’s brief. On the con­trary, complainant had time and
again urged respon­dent to file the brief, in fact, she had resorted to seeking
the assistance of another lawyer to file said brief, but to no avail.

In this connection, it may be mentioned in pass­ing that although
the rulings in the afore-cited cases of Cawili and Rosqueta have
reference to the filing of appellant’s brief in criminal cases, they apply with
equal force to civil cases, whether the brief be for appellant or appellee, the
reason behind said rulings being the same in both cases, that is, that counsel
should discharge fully his respon­sibility to the client as well as to the
court.

In attenuation of respondent’s negligence, We note that on March
7, 1977, the Court of Appeals af­firmed the trial court’s judgment in favor of
com­plainant. It also appears that
respondent, with the apparent consent of the complainant, filed a motion for
execution of the judgment. We consider
this continued lawyer-client relationship as an ex­tenuating factor because if
indeed respondent’s neg­lect or omission had seriously prejudiced her, com­plainant
would have terminated that relationship immediately.

WHEREFORE, respondent Fidencio H. Gerio is hereby
REPRIMANDED for his failure to file appel­lee’s brief in the Court of Appeals
within the reg­lementary period, and admonished to be more circum­spect in
complying wit his duty to his client and to the court.

Fernando, (Chairman), Barredo, Aquino, Concepcion, Jr., and Santos, JJ.,
concur.

^[1]
People v. Cawili, L-30543, August 31, 1970, 34 SCRA 728.

^[2]
L-36138, January 31, 1974, 55 SCRA 486.

^[3]
Adm. Case No. 1601, January 31, 1977, 75 SCRA 118.